Redistricting: Where We’ve Been, Where We Are, and Where We’re Going

(Great diary, VERY helpful – thank you! – promoted by lowkell)

Lowell already brought to our attention the good news that the courts handed the Republicans a defeat in the first round of what may prove to be a long legal fight over redistricting in Virginia. I am no legal scholar, but I was excited by the news that the judge dismissed the Republican argument that “shall” doesn’t really mean “shall” and found that the group of Virginia citizens had standing for the lawsuit to move forward. But Governor McDonnell is moving forward with the same incumbent protection plan that the House Republicans (with a few unfortunate Democratic allies) pushed through last year in 2011. With redistricting still a big question mark moving forward, just months away from the November election, I wanted to take some time to sort through the entire mess. Where we’ve been, where we are, and where we’re going.

Where We’ve Been

Going back over a decade ago, Virginia Republicans in 2001 had the “privilege” of controlling redistricting for the first time in the modern era. They leveraged this advantage into pressuring Virgil Goode, already a Democrat-In-Name-Only who had voted to impeach President Clinton, to officially leave the party and begin to caucus with the GOP. They also worked to shore up newly elected Congressman Randy Forbes in the 4th, who had won a special election by a very close margin.

Below, I’ve calculated the partisan lean of the post-2000 census drawn district based on the 2000 Presidential numbers relative to the national average. So a R +6 district is one in which George W. Bush ran 6 points ahead of his national showing (47.87%, or rounded to 48%), which as we all know was less than Al Gore’s popular vote national…

1:  R + 9.5

2:  R + 6

3:  D + 17

4:  R + 5

5:  R + 7

6:  R + 11.5

7:  R + 12

8:  D + 9.5

9:  R + 6.5

10: R + 7

11: R + 3.5

STATEWIDE: R + 4

Republicans managed to make 8 of the 11 districts more Republican leaning than the state, with only two Democratic leaning (3rd and 8th) and the 11th just a bit more Democratic-leaning than the statewide average. The 4th was the second least Republican of the GOP districts.

Here’s how the districts were BEFORE the Republican gerrymandering, based on the same 2000 numbers:

1:  R + 9.5

2:  R + 4

3:  D + 16.5

4:  0 (Even)

5:  R + 8

6:  R + 9.5

7:  R + 13.5

8:  D + 7.5

9:  R + 6.5

10: R + 9.5

11: D + 1

STATEWIDE: R + 4

You can see how the Republicans used redistricting to shore up their vulnerable incumbents. Schrock in the 2nd had won a narrow race over Jody Wagner in 2000, Forbes narrowly won a special election earlier in 2001, and the 11th was seen as a trending Democratic target. The 10th was actually made less Republican as part of the plan to shore up Davis in the 11th.

Let’s have a quick look at the partisan trends in each district over the next two elections under the Republican drawn lines. First, here’s how the state trended. I go back before 2000 to show how things have slowly been moving in the Democratic Party’s direction, at least at the Presidential level.

Virginia

1988: R + 6

1992: R + 5

1996: R + 5

2000: R + 4

2004: R + 3

2008: 0 (Even)

Slow, gradual shift to the Democratic Party, with a more sudden shift in 2008.

Now the Congressional districts from 2000 onward.

1st District

2000: R + 9.5

2004: R + 9

2008: R + 5

Nothing significant in 2004, but a sharp shift to the Democrats in 2008.

2nd District

2000: R + 6

2004: R + 6.5

2008: R + 3.5

Another sharp shift to the Democrats in 2008, but nothing much in 2004 . . .

3rd District

2000: D + 17

2004: D + 18

2008: D + 22.5

Democratic district, but same story. Sharp shift in 2008, but nothing too significant in 2004.

4th District

2000: R + 5

2004: R + 5.5

2008: R + 3

Noticing a pattern? Nothing much in 2004, but big surges in 2008. I wonder . . .

5th District

2000: R + 7

2004: R + 5

2008: R + 5

Woah, a change! We see more of a shift going in 2004, but no shift in 2008 itself. Could it be John Kerry winning Albemarle County, the first Democrat since 1948? Or Danville, again the first Democratic presidential candidate to win the locality since 1948? But then no surge in 2008? Curious.

6th District

2000: R + 11.5

2004: R + 12

2008: R + 11

Nothing exciting here . . .

7th District

2000: R + 12

2004: R + 10

2008: R + 7

Interesting, about a decade of trending Democratic, even if it started from a deep ruby red lean and ended up still crimson.

8th District

2000: D + 9.5

2004: D + 16

2008: D + 16

That’s a big shift going into 2004, with less of a shift in 2008. I’d argue that Arlington and Alexandria really hit peak Democratic performance in 2004 in organizing against Bush, and beyond that it’s hard to push the envelope much further.

9th District

2000: R + 6.5

2004: R + 8.5

2008: R + 13

Look at that. The 9th started out at about the same partisan leaning of say the 2nd, but ended the decade as the most Republican leaning district statewide.

10th District

2000: R + 7

2004: R + 4

2008: 0 (Even)

Remember that Republican gerrymandering that made the 10th more Democratic to help Davis in the 11th, because Wolf was so safe? Well look what happened to his district . . .

11th District

2000: R + 3.5

2004: R + 1

2008: D + 4

And the other end of that shift? The 11th continued to trend Democratic, more than reversing the effects of the gerrymandering.

We can see the following groups.

Trending Republican: 9th (Both 2004 and 2008)

Trending Democratic: 7th, 10th & 11th (Both 2004 and 2008)

No Trend: 6th (pretty much flat)

Pro-Dem in 2004, Flat in 2008: 5th and 8th (for very different reasons I’d say)

Flat in 2004, Pro-Dem in 2008: 1st, 2nd, 3rd, and 4th (What a difference a presidential campaign that invests resources in Virginia can make!).

This fits intuitively with our gut feeling looking back at the last decade of Democratic defeats in several state legislative districts in Southwest Virginia (9th) with gains in Northern Virginia (10th and 11th).

Why does all of this matter? Because of the proposed incumbent protection plan coming from Virginia Republicans. Here’s what the plan would do, based on 2008 numbers, with the old lines in parenthesis.

1:  R + 7 (R + 5)

2:  R + 4 (R + 3.5)

3:  D + 24.5 (D + 22.5)

4:  R + 5 (R + 3)

5:  R + 6 (R + 5)

6:  R + 12 (R + 11)

7:  R + 10 (R + 7)

8:  D + 13 (D + 16)

9:  R + 13 (R + 13)

10: R + 3.5 (0, Even)

11: D + 8 (D + 4)

The deal makes the 11th much more Democratic in exchange for shoring up Wolf (and his possible GOP successor) in the 10th. It also tries to work some magic in the 1st, 2nd, 4th, 5th, and even 7th.

Look back to the past Republican gerrymandering. Most vulnerable district then was the 11th, R + 3.5. Then the 4th, at R + 5, and then the 2nd, at R + 6. What happened? The 11th was still in a trending Democratic area and went Democratic when it opened up. The 2nd was a competitive seat in 2006, 2008, and 2010. And the 4t? Well, I guess that’s where we didn’t get lucky.

Now look at today. Here the most vulnerable is the 10th, at R + 3.5, and again it’s in a Democratic trending area where I think we can still be optimistic when the seat opens up. The 2nd is next, at R + 4, more competitive than a decade ago and we already have a great candidate for 2012 there.

Here’s the big difference from 2000/2001. Back then, the GOP had to focus on only three incumbents/districts (2nd, 4th, and 11th). They had the luxury of having safe incumbents elsewhere. Today, they are trying to juggle a host of incumbents and their demands, meaning they’ve only been able to make minor attempts at shoring up the 2nd or 5th. And it’s questionable that their trade in Northern Virginia between the 10th and 11th will last.

Assuming their incumbent protection plan even holds, which brings us to where we are now . . .

Where We Are

The recent court ruling isn’t really the beginning of the end, but it is hopefully the end of the beginning. The ruling removed the major hurdles to the lawsuit, mainly attempts by the Republicans to have it dismissed from the start.

The General Assembly did have an obligation to address redistricting in 2011, and it did fail to do so. And more importantly, average Virginia citizens just like you and me have the opportunity to go to court to hold the General Assembly accountable for its failure.

That’s the easy part.

Now, what to do about it?

That’s not entirely clear.

Again, I’m no legal scholar, but I’ve read with great interest the recent Supreme Court decision dealing with redistricting in Texas. Here, you can go read it.

First, I like reading some passages about the “unwelcome obligation” of courts having to step in and address redistricting if the state has in some way or another failed to do so. Here’s a passage I found interesting:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth.

In this part, the Supreme Court is unanimously finding that even when the courts have to step in and draw lines, they need to take guidance from the recently enacted plans .  . .

But what if there isn’t a recently enacted plan, which was the argument of the Texas Courts given that the new plan hadn’t done through the full rigors of the Justice Department’s Voting Rights Act preclearance?

But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences.

What does all this mean?

Well, I’ll try to come up with analogy.

Let’s put aside the issue of the General Assembly’s failure to address redistricting in 2011 aside and let’s just assume their incumbent protection proposal passes. It’s still vulnerable to objections about packing minorities in the 3rd district. The courts are asked to intervene and settle the dispute. Even in drawing new interim maps, the courts can’t just go and say “We don’t like how Salem but not the city of Roanoke was put into the 9th, we’re going to change that too.” The courts can only specifically address the issues related to the Voting Rights Act, which would be primarily the 3rd, 4th, and some parts of the 1st, 2nd, and 7th in order to ensure equal population.

But here’s the kicker. The ruling is that the General Assembly should have addressed redistricting in 2011, and it did not. Can the new 2012 plan really be seen as the “enacted plan” under these circumstances?

It is very hard to say.

The problem is that there are several potential challenges to Virginia’s redistricting. One is that the General Assembly failed to fulfill its obligation to address redistricting in 2011. There are also questions about proposed lines under the Voting Rights Act.

There are two important aspects of the Voting Rights Act that address Virginia, and I’ll try to explain them as simply as I can.

First, there is a Section 5 that covers states like Virginia with a history of racial discrimination through our electoral system and voting laws. This means the state has to get approval, or preclearance, from the Justice Department before new electoral systems (including maps) or voting laws that effect. Recently DoJ blocked a voter ID law in South Carolina because of this provision.

To be honest, given that we have one minority-majority district right now, and all proposed plans continue one minority-majority district, I don’t see Section 5 being an issue…

But Section 2, which is the section of the Voting Rights Act that is commonly seen as “requiring” minority-majority districts where possible, could be of issue to Virginia.

With African-Americans making up about 20% of Virginia’s population, the math is there that a fair and equitable redistricting would have two minority-majority districts. Unfortunately, population patterns make this apparently difficult. Historically, the courts don’t like seeing a very extreme gerrymandering in order to come up with minority-majority districts. But some degree of creative line drawing is fine if the goal is to unite communities of shared interest. What’s the difference? Well, the courts know it when they see it…

The Republican-backed incumbent protection plan does not create a second minority-majority district. The Democratic-backed plan does not create a second minority-majority district either, instead going for what they call a minority-influence or minority-opportunity district. This is great from the perspective of promoting a more just and equitable Commonwealth, and no court would strike it down if it were signed into law in Virginia. But trying to convince a court to draw an interim map based on this proposal will be difficult, because nothing in the Voting Rights Act compels the state to consider such a district.

But there is another possibility.

The ACLU argues that Virginia can draw two minority-majority districts. You can see their proposed maps here.

Legal precedent essentially argues that Section 2 requires minority-majority districts when a district can be drawn that contains enough minority population to elect a candidate of the minority population’s choice. That means that minorities must make up at least 50% of the district’s voting age population.

With me so far?

Here is the ACLU’s argument:

Under the ACLU plan, 52.92% of the population in the third district and 52.40% in the fourth district identify themselves as African-American alone or in combination with other races (referred to as Any Part Black or AP Black).  The AP Black voting age populations in these districts are 50.02% and 50.24%, respectively.  The voting age populations for individuals who identify as single-race Black or African-American are 48.77% and 49.40%, respectively, although it is possible to increase both numbers to over 50% by splitting additional precincts.

Two minority-majority districts, right?

Well, maybe not.

Note that they’ve counted “any part Black” for their statistical analysis. As Senator McEachin and others have noted, the Justice Department prefers to look at a strict “Black only” metric when interpreting the Voting Rights Act. So Black and Hispanic? Not Black enough for the Justice Department. Maybe your father was from Kenya but your mother was from Kansas, and so you want to mark down two or more races?. Nope, not Black enough for the Justice Department.

Yes, it is the 21st Century, and we’re still debating the modern day equivalent of “one drop of blood.”

I think it’s absurd, but it’s how the law is interpreted. Or at least it’s how the Justice Department interprets it. There’s no court precedent on how to deal with interracial individuals. The ACLU could actually be in a position to win a court fight over its argument that any part Black is enough for the Voting Rights Act, in which case it’s ability to draw two minority-majority districts matters. It will be a very interesting development to watch in the future.

So to recap where we are now.

The court agrees that the General Assembly dropped the ball in 2011. But it’s not clear what the outcome will be. Will the courts step in to draw their own lines? If so, based on what? The old lines? The proposed incumbent-protection plan? Trying to split the difference between the Democratic and Republican proposals? But what about the Voting Rights Act?

Or will the courts say the General Assembly should have drawn new lines in 2011, but since they worked really fast in 2012 to do so it doesn’t matter? Better late than never? That still doesn’t resolve issues regarding the Voting Rights Act that might still result in another minority-majority district in Virginia.

Pop the popcorn, there’s going to be some legal excitement to watch!

Where We’re Going

Look back at the Republican gerrymandering from the start of the decade. The goal was to shore up Schrock, Forbes and Davis. Well Schrock had his own problems. The 2nd was eventually won by a Democrat in 2008, and was competitive back in 2006. Forbes remain safe, but Democratic trends in Charlottesville/Albemarle and Danville/Southside caught up with Goode in 2008. And Davis, once he retired, had to hand his seat over to a Democrat. Elsewhere Wolf, who once occupied a safe Republican district, had to start to worry about the next cycle and what would happen when he retired.

Even if the Republican gerrymandering passes, I think we’ll see their efforts to protect Wolf and his successor come to naught. Northern Virginia is growing too fast and too Democratic to keep the 10th safely Republican for the next ten years, especially given a likely Wolf retirement at some point. That’s not to say it won’t be a real barnburner when he does retire. Heck, Gen. John Douglas may be ready to give him a barnburner this year.

The 2nd you’ll notice receives only a small Republican nudge under the gerrymandering. It is positioned to continue to play the role of a swing district over the next few cycles, unless one part or another begins to establish a permanent edge in the south Hampton Roads area. Paul Hirschbiel is an excellent and exciting candidate in this seat for the 2012 cycle.

Democrats are well positioned in at least two additional seats in the next decade. I’m sure someone in 2001 or 2002 could have seen Democrats winning the 2nd and the 11th over the next decade, but might have been surprised that it would be the 5th and not the 4th that would be the third seat to swing during the decade. Both seats might be competitive in the next decade, but if the incumbent protection plan passes my money is on the 5th.

Charlottesville is growing and is trending Democratic, acting as a mini-Northern Virginia in the 5th District. Other parts of the district, primarily around Lynchburg and Roanoke, are trending Republican and so far seem to be balancing out the northern part. Their growth isn’t going to keep up with Charlottesville’s though. And adding new exurbs around 66 near Warrenton may be the undoing of Hurt later in the decade, if the Republican plan is upheld.

I know it is far away, but Virginia is right on the cusp of a 12th congressional district in 2020. We’d have a 12th already if the House of Representatives had 445 members instead of 435; we’re that close. Continued growth in Northern Virginia, coupled with the decline of other Rust Belt and Northern states, could well position us for a 12th seat in 2020.

What does that mean?

First, with 12 instead of 11 seats the math behind a second minority-majority seat becomes much easier, especially with projections still seeing African-Americans making up 20% of the population in Virginia in 2020.

Second, continued growth in Northern Virginia means that three, not just two, Democratic-leaning districts are likely. I believe Wolf’s seat will go Democratic later this decade, and much like Republicans today are willing to accept Connolly in the 11th in order to shore up their other seats, I think in 2020/2021 accepting a third Democratic member in Northern Virginia in order to shore up Republicans elsewhere will make sense to the GOP.

If the Republican gerrymandering passes, it means that both the 1st and the 5th will see a growing portion of the district in the Northern Virginia suburbs. By the end of the decade, if these districts are still Republican their incumbents will love to shed the areas. That probably means the new district will wrap around “surplus” areas from these districts, potentially going as far south as Charlottesville, and would be very competitive between the two parties.

And again, unless one party begins to build a significant advantage in southern Hampton Roads, the 2nd will continue to be competitive for the future.

Two minority-majority districts, three Northern Virginia districts, and at least two swing districts. It’s hard to say how the rest of the state would look, after another decade of population shifts, but that would probably leave at least Republican-leaning districts around Southwest (9th), the Valley (6th), Richmond (7th) and an assortment of white suburbs in the Peninsula, Richmond, Northern Neck, and south of Northern Virginia (1st).

If you have a new majority-majority district it might stretch all the way to Danville. If you’ve dumped Charlottesville into a new district it might leave a very small rump portion for a Southside 5th district, which would have to take in a lot more of Richmond to work out. I don’t know if it would work out, again I’m just projecting forward ten years, but it’s worth considering.

In Summary

How can I sum up all of these odds and ends?

First, it’s important to understand that ten years ago Republicans were trying to rig the lines to keep Tom Davis elected in the 11th and they didn’t have to worry about Frank Wolf at all. Today, they are cutting deals to make Gerry Connolly safe because they are that worried about Wolf’s seat. Northern Virginia continues to grow and trend Democratic and we need to ride that wave as much as possible.

Second, the Voting Rights Act establishes a line regarding what is legal, not what is right. We might not win the fight over a second minority-majority or minority-majority influence/opportunity district this time around, but we all know that a second district favorable to Virginia’s minority communities is the right thing to do. I believe the arch of history is on our side. Continued outreach and mobilization of Virginia’s African-American community is a good long-term investment for Virginia Democrats.

Third, the 2nd District around Virginia Beach and Southern Hampton Roads will continue to be a tossup seat. I’ve read a lot of political pundits bemoan the difficulties Virginia Democrats face in rural areas of the state. But what about metropolitan areas outside of Northern Virginia? I’d rather see strong, unapologetic Democrats in Hampton Roads who can tackle the real issues of the harm from proposed offshore drilling, what uranium mining means for Virginia Beach, or how to build a new energy economy through wind energy.

Fourth, our dear Charlottesville community friends may feel temporary setbacks after 2010 and the proposed Republican gerrymandering to make Robert Hurt safer, but I think in the long term the growing influence of Charlottesville and Albemarle will keep the 5th competitive and ensure that Hurt can’t take his seat for granted. We might not elect another Tom Perriello, but maybe being the thorn in Hurt’s side means Charlottesville/Ablemarle will top the list of likely areas included in a new, more competitive district in 2022?

And finally, thank you so much for reading to the end of this diary. I welcome your thoughts and would love to entertain discussion and debate in the comments.